The opinion of the court was delivered by: Honorable David H. Coar
MEMORANDUM OPINION AND ORDER
Plaintiffs, the Boards of Education for the Ottawa Township High School and Elementary School districts in Illinois and four special education students and their parents (collectively "Plaintiffs") , are suing the United States Department of Education ("DOE"), the Illinois State Board of Education ("ISBE"), and the respective head officials of the two agencies in their official capacities (collectively "Defendants"), pursuant to 28 U.S.C. §§ 2801 and 2802 for a declaration that portions of the No Child Left Behind Act ("NCLBA") are invalid because they violate the Individuals with Disabilities Education Act ("IDEA"). Before this Court now are 1) Defendants' ISBE and Dr. Dunn's motion for summary judgment, 2) Defendants' DOE and Margaret Spellings (the "Secretary") motion for summary judgment and 3) Plaintiffs' cross-motion for summary judgment.
The NCLBA amends the Elementary and Secondary Education Act of 1965. 20 U.S.C. §6301 et seq. (2006). The NCLBA created adequate yearly progress ("AYP") with which it measures schools' and school districts' progress in meeting a State's academic achievement standards. NCBLA requires that a State accepting Title I funds define its own AYP to use each year to determine the progress of schools and districts. See 34 C.F.R. §200.13 (2006). In Illinois, AYP is based on three factors: (1) the percent of reading and math scores that meet or exceed standards, compared to the annual state targets; (2) the participation rate of students in taking the state tests; and (3) the attendance rates. 105 Illinois Compiled Statutes 5/2-3.25(b) (2006). The NCLBA requires all but a very small percentage of students with disabilities to take grade-level assessments. The NCLBA allows only a small number of students with the "most severe cognitive disabilities", to take alternate assessments and still be counted for AYP purposes. Therefore, most students with disabilities must take grade level assessments and meet the same proficiency standards as the general education student population.
Under IDEA, all children with disabilities are entitled to a free appropriate public education that emphasizes special education and related services designed to meet students with disabilities' unique needs and prepare them for employment and independent living. 20 U.S.C. §1400 et seq. (2006). An individualized education program ("IEP") for each student identified as having a disability is mandated by IDEA. §1414. The IEP is required to be aligned with the Illinois State Learning Standards, as well as reflect the needs of the individual student as they relate to her unique disability. Id. IDEA requires states to use IEPs to determine the appropriate way to educate and test students with disabilities, including using alternate assessments. However, those assessments must also be aligned with Illinois State Learning Standards. The NCLBA only allows students with the most serious cognitive disabilities to be tested according to the alternate assessments and included in AYP.
When a school does not achieve AYP for 4 years, the school is placed on State Academic Watch Status Year 1, 105 Illinois Compiled Statutes 5/2-3.25d, and Federal Corrective Action Status, 20 U.S.C. §6316(b)(7)(C). A school in State Academic Watch Status Year 1 is required to create a revised School Improvement Plan approved by the school board and work with a school or district improvement panel which assists with the development and implementation of the revised Improvement Plan and makes progress reports to the State Superintendent of Education. 105 Illinois Compiled Statutes 5/2-3.25(d). Additionally, a Title I school in Federal Corrective Action Status must continue to offer School Choice, Technical Assistance and SES and must engage in Corrective Action. 20 U.S.C. §6316(b)(7)(C). Corrective action must include at least one of the following: (1) replacing the school staff who are relevant to the school's failure to make AYP; (2) instituting and fully implementing a new curriculum with appropriate professional development; (3) significantly decreasing management authority at the school level; (4) appointing outside experts; (5) extending the school day or year for the school; or (6) restructuring the internal organization of the school. 20 U.S.C. §6316(b)(7)(C).
IDEA requires the district Plaintiffs to individually assess and program for the unique needs of students with disabilities and provide services that reflect the needs of each individual student as they relate to his or her unique disability. In contrast, the NCLBA allegedly ignores the unique needs of students with disabilities by imposing a requirement that students with disabilities meet state standards based on all students. Furthermore, Plaintiffs allege that the remediation activities are applied without regard to the IEPs of students with disabilities and that the only feasible corrective action a school or district can utilize is a change in the curriculum of the students not meeting State standards. Here, those students have disabilities and changing thier curricula means changing their IEPs to meet general standards that do not account for these students' individual needs. Thus they argue that the NCBLA violates IDEA.
In 2004, Ottawa Township High School District ("Plaintiff 140") and Ottawa Township Elementary School District ("Plaintiff 141") failed to make AYP because most of their students with disabilities were tested at grade level standards rather then based on their IEP determined educational needs and ability. If the achievement scores of the students with disabilities in the school district Plaintiffs were excluded from those Plaintiff's AYP calculations, both of these Plaintiffs would have achieved AYP. These Plaintiffs, along with disabled students and their parents, brought the instant action against the DOE and ISBE claiming that as the NCLBA is being currently administered, it violates the IDEA. Both Plaintiff 140 and 141 provide educational services to the disabled student Plaintiffs and others like them. Plaintiff 141 accepts NCLBA funds. Although Plaintiff 141 currently has no schools that have both accepted Title I funds and been identified for corrective action now, this Court finds that due to the Illinois Accountability System's method of grouping and subgrouping children within a district, Plaintiff 141 can possibly be subjected to corrective action at some distant point in the future. Plaintiff 140 did not receive such funds before this case was filed, but thereafter applied for those funds for the explicit purpose of securing standing. The State of Illinois accepts NCLBA funds. Under the statutes in question, when a State accepts NCBLA funds, it is then subject to certain rules and requirements. Also when schools or local educational agencies accept NCBLA funds, they too become subject to certain rules and requirements. It is not clear from the evidence presented by either party, which rules and requirements apply to a school that in its own behalf did not accept NCLBA funds, but nonetheless come under the purview of a State that has accepted NCBLA money. Thus, this Court depends on its own reading of the relevant statutory provisions.
Summary judgment is only appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(C). A genuine issue of material fact exists only if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it can affect the outcome of the case under the applicable substantive law. Id. When reviewing a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. See Schuster v. Lucent Technologies, Inc., 327 F.3d 569, 573 (7th Cir. 2003).
The movant bears the burden of establishing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden, the non-movant must set forth specific facts demonstrating that there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. To successfully oppose the motion, the non-movant must designate these facts in affidavits, depositions, answers to interrogatories, or admissions; the non-movant cannot rest on the pleadings alone. Celotex, 477 U.S. at 324.
Defendants assert that Plaintiffs have not established standing in this case. Determining standing is akin to determining "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498 (1975). Standing is a question of jurisdiction, which a court must have to even hear a matter. This is a requirement that extends to all actions, even ...